BTS15 v Minister for Immigration

[2017] FCCA 3058

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTS15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3058

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – credibility issues – application dismissed.

Legislation:
Migration Act 1958, s.424AA

Applicant: BTS15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1991 of 2015

Judgment of: Judge Riley

Hearing date: 16 November 2017

Date of last submission: 16 November 2017

Delivered at: Melbourne

Delivered on: 16 November 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Jamie Grant

Solicitors for the first respondent: Sparke Helmore

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. The application filed on 2 September 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1991 of 2015

BTS15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection refusing the applicant a protection visa. 

2. The applicant is a citizen of Nepal.  He was born in 1978.  He went to Saudi Arabia for work from 1999 to 2007.  During that time, he returned two or three times for visits to Nepal. 

3. The applicant came to Australia on 27 October 2007.  He arrived as the secondary visa holder of a visa held by his then wife.  The applicant arrived in Australia on his Nepalese passport issued on 14 January 2004.  The passport shows that he returned to Nepal from Australia in 2009 and 2013 for visits. 

4. The applicant separated from his wife who was the primary visa holder in 2012 in Melbourne.  He applied for a protection visa on 9 September 2013.  He claimed that:

   a)he was a member of the Communist Party of Nepal (Maoist); and

   b)he had been falsely accused of various terrorist offences, which included attacking villages and a truck driver, destroying a telecommunications tower and setting a truck on fire. 

5. The applicant did not attend his interview with the delegate notwithstanding that the delegate had sent him a letter inviting him to the interview and made numerous attempts to telephone him about the interview. 

6. The delegate considered that the applicant’s claims were vague and lacking in detail.  The delegate noted that:

   a)the applicant had lived outside Nepal from 1999 to 2007; and

   b)the applicant had travelled to Nepal twice in 2009 and 2013 without experiencing any problems from the authorities. 

7. The delegate refused the protection visa application.  The applicant then applied to the Tribunal[1] for review.  The applicant attended a hearing before the Tribunal and was assisted at the hearing by his migration agent and an interpreter.  The applicant made a new claim at the hearing arising from the earthquakes that badly damaged Kathmandu in 2015. 

   [1] The Tribunal at that time was known as the Refugee Review Tribunal.

8. The Tribunal questioned the applicant extensively in relation to credibility issues.  For example, the Tribunal put to the applicant during the hearing that documents he had produced showing that he was on a wanted list on 20 and 28 January 2013 were inconsistent with him using his passport to leave Nepal in February 2013. 

9. The Tribunal put it to the applicant that these circumstances suggested that an arrest warrant had not been issued for him, contrary to his claims.  The applicant is recorded as responding vaguely, saying that the earlier time is not always the same. 

10. The Tribunal also put to the applicant during the hearing that the authorities had had ample opportunity to detain him but nothing had happened.  The applicant responded to the effect that transformation is a thing that happens in a second place in a human’s life.  When the Tribunal said it did not understand, the applicant said in 2009 he had gone back to Nepal but was not caught.  The Tribunal persisted in trying to clarify the applicant’s response but found that the applicant simply did not engage with the Tribunal’s questions. 

11. The Tribunal also noted that, notwithstanding the applicant’s claims that arrest warrants had been issued in respect of him, he was able to renew his passport with the Nepalese authorities on 24 March 2014.  The Tribunal discussed numerous other aspects of the applicant’s evidence with him at the hearing.  Ultimately, the Tribunal concluded that the applicant was not a truthful witness.  The Tribunal gave 10 reasons for reaching that conclusion which spanned paragraphs 21 to 43 of its reasons for decision. 

12. The Tribunal heard evidence from a friend of the applicant.  However, the Tribunal concluded that the witness’s evidence was vague and had been made up. 

13. The Tribunal also considered various documents provided by the applicant including various arrest warrants.  The Tribunal put to the applicant at the hearing that independent country information suggested that documents could be readily fabricated in Nepal.  In view of the Tribunal’s concerns about the applicant’s credibility, the Tribunal did not give the applicant’s documents any weight.  The Tribunal considered that the applicant was prepared to give false evidence to obtain a protection visa. 

14. The Tribunal also considered the effect of the earthquakes in 2015.  The Tribunal accepted that Nepal had been struck by earthquakes in April and May 2015.  However, the Tribunal did not accept that the applicant faced a real risk of harm for any Convention reason arising from the earthquakes. 

15. The Tribunal also considered the complementary protection provisions.  However, the Tribunal did not accept that the applicant faced a real risk of significant harm if he were to return to Nepal. 

16. The Tribunal affirmed the delegate’s decision. 

17. The applicant applied on 2 September 2015 for review by this court of the Tribunal’s decision. 

18. The matter was listed for hearing today at 10am.  When the matter was called on, the applicant did not appear.  When there was no sign of the applicant at 10:10am, the matter was dismissed for non-appearance.  However, the applicant entered the court at about 10:18am.  It was possible to contact the Minister’s solicitor who returned to court at about 10:36am.  The orders dismissing the matter for non-appearance were vacated and the matter proceeded with the assistance of an interpreter. 

19. The applicant asked for more time.  It was eventually ascertained that he wished to have the matter adjourned to obtain legal assistance.  He said that he had an appointment with someone who could assist him in the court today but that person told him to go to court and ask for more time.  The applicant was asked who this person was.  It was eventually ascertained that the person works with a firm called TWGG.  My associate googled that firm and discovered that it is a firm of migration agents.  Migration agents, as such, are not entitled to appear in this court.  In all the circumstances of this case, there does not appear to be any reasonable prospect that the applicant would be able to obtain legal assistance within the reasonably foreseeable future.  The applicant has had over two years since the application was filed in this court to seek legal assistance but he has not done so.  In these circumstances, the interests of justice require that the application for an adjournment be refused. 

20. The application to this court appears to have been prepared without the benefit of legal assistance.  The grounds of the application are as follows:

    1.I was not given a fair hearing at the Tribunal.

    2.The Tribunal was biased towards the Department of immigration and Border Protection,

21. The applicant was asked if he wished to elaborate on these or any other matters.  He said he did not.  His affidavit in support does not shed any light on his grounds. 

22. In relation to the first ground, the applicant was invited to a hearing before the Tribunal, which he attended. He was assisted by a migration agent and an interpreter. The Tribunal put its concerns about the applicant’s claims to him during the course of the hearing, pursuant to s.424AA of the Migration Act 1958.  The applicant must have known that the credibility of his claims was in issue, given that the delegate had found that his claims lacked credibility.  I have been unable to detect anything in the Tribunal’s reasons or decision making process that supports the claim that the hearing before the Tribunal was not fair. 

23. The second ground, relating to bias, is an allegation that must be clearly particularised and clearly proved.  The applicant has not provided any evidence that would substantiate a claim of either actual or apprehended bias.  The Tribunal appears to have carefully and thoroughly considered the applicant’s claims and evidence.  The Tribunal expressed thorough and cogent reasons for not accepting the applicant’s claims.  It seems to me that there is nothing in this case that gives any indication at all that the Tribunal was biased or could reasonably be apprehended to have been biased. 

24. I have considered the materials before the court in some detail.  I have been unable to detect anything that would amount to a jurisdictional error.  In the circumstances, the application must be dismissed. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     7 December 2017